Thursday, November 3, 2011

Yesterday I reported on a Spanish court proceeding involving Apple's iPad-related Community design and a small Spanish company named Nuevas Tecnologías y Energías Català marketing Android-based tablets under its nt-k brand.

I did my initial reporting based on nt-k's corporate blog post and reports in reputable Spanish media such as Expansión. In addition, I have talked to people in the industry and received help from someone tracking down the Spanish court document that notified the general public of the dismissal of the case. Based on what the document says, I think the implications of this case for Apple's enforcement of its design-related rights are probably much less wide-ranging than it initially appeared. It seems that even in Spain Apple could still assert its iPad design-related rights under civil law. Also, the nature of Apple's involvement may have been limited to that of an initial complainant (who according to nt-k also filed an indictment) as opposed to that of a party litigating a case all the way through. That's what my sources say, and it's possible.

I still think that there's a right way (civil law) and a wrong way (criminal law) to address design rights infringements that are just infringements and not hardcore counterfeiting cases, but it really seems that Apple didn't use the full force of its legal machinery to go after that little Spanish company.

Here's the document -- I will translate it (I'm reasonably fluent in Spanish) and then provide some more explanations:

Matter: previous measures under expedited proceeding number 000291/2011 -- General Registry Number 000408/2011

ORDER OF PROVISIONAL DISMISSAL (ACQUITTAL)

Quart de Poblet -- September 14, 2011

I. FACTS

Sole item: The present proceeding was initiated by the facts that result from previous proceedings, having taken the investigative measures deemed essential to determining the nature and circumstances of the facts and to identifying the persons who participated in them.

II. LEGAL BASIS

Sole item: From what has been seen in court, the commitment of the crime that gave rise to the instigation of this matter does not appear sufficiently substantiated. Therefore, in accordance with articles 789 and 641-1 of the Code of Criminal Procedure, it is appropriate to order the provisional dismissal of the case.

In light of the foregoing,

I ORDER: It is decided to dismiss the present case on a provisional basis, which will be notified to the public prosecutor and to the parties if there were any.

This decision is not definitive and can be appealed to this court within THREE days.

It is so ordered and signed by Judge Marta Espuny Sanchis, Judge of the First Instance Court No. 1 of Quart de Poblet, as certified.

MEASURE: Subsequently the decision shall be executed, as certified.

The document does not reveal the parties. It does not contradict what I heard from my sources, which is that Apple's involvement was at the most limited to an indictment. Again, I stand by my view that even an indictment is a way of bringing criminal charges and so far I haven't seen any indication that this was the appropriate way to handle this matter, but bringing an indictment is different from litigating an entire lawsuit. An indictment leaves it to the discretion of a public prosecutor whether there is an indication of some wrongdoing and a public interest in pursuing the matter.

The notice of dismissal does not explain in detail why the court believed there was no crime committed. But such an acquittal under criminal law doesn't necessarily mean that what NT-K did is acceptable under civil law. A criminal case can be dismissed because there was no wrongdoing, but it can also be dismissed if the court didn't consider the facts to meet the criteria for a criminal act, which includes a criminal intent. In other words, a finding of no crime is not the same as a finding of no infringement of a valid intellectual property right.

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About Me

Florian Mueller is an app developer who used to be an award-winning intellectual property activist. His 30 years of software industry expertise span different market segments (games, education, productivity and infrastructure software), diverse business models, and technical and commercial areas of responsibility. In recent years, Florian advised a diversity of clients on the patent wars surrounding mobile devices, and on their economic and technical implications. (In order to avoid conflicts of interest, Florian does not hold or initiate transactions in any technology stocks or derivatives thereof, except that he is long AAPL.) He is now developing games for smartphones and tablet computers.